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Children's school fees - ex refusing to pay

My kids' school is suing me for outstanding fees. I never agreed to send them there, my ex did. What can I do?

This exact question was recently posed to me by a client. My instructions were that his ex-wife has forged his signature on the enrolment forms to send the children to that school, and that she was not paying the school fees. The school was now suing him for the school fees and he said that he was not liable for them.

The unfortunate reality of the matter for my client is that according to the South African Schools Act 1996 (Act 108 of 1996), the natural parents are jointly and severally liable for school fees. In this particular case the mother was the guardian parent of the children and therefore did not need permission from my client to enrol the children at the school.

Relevant case law dealing with the abovementioned dispute is that of Fish Hoek Primary School v GW (642/2008) [2009] ZASCA144 (26 November 2009).

This case dealt with liability of the non-custodian parent for his child's school fees. In this case the appellant school sued the respondent for payment of the sum of R1 610, being outstanding school fees in respect of one of its minor learners. The school relied upon section 40(1) of the Act, which provides: "A parent is liable to pay the school fees determined in terms of section 39 unless or to the extent that he or she has been exempted in terms of this Act". The respondent had not been exempted.

The respondent asserted that whilst the biological father of the learner, he was not liable for the school fees but that the custodian parent was. The question arose in this decision as to whether the respondent is indeed a parent in terms of section 40(1) of the Act. A parent is defined in section 1 of the Act as:

"a) the parent or guardian of a learner;
b) the person legally entitled to custody of a learner, or
c) the person who undertakes to fulfil the obligations of person in paragraphs (a) and (b) towards the learner's education at school."

The court interpreted the use of the word "parent" in section 40(1) to include non-custodian parents.

The appeal succeeded in the end and the non-custodian parent was found to be liable for the school fees. The court also noted that historically mothers have been the primary care-givers of children and that continues to be so. It is almost always the mothers who become custodial parents and have to care for children on the breakdown of their marriage or other significant relationships.

That places an additional financial burden on them and they have become overburdened in terms of responsibilities and under-resourced in terms of means.

All in all I think this decision was a correct one. In terms of our maintenance law both parents are under a duty to support their children. However that is not always possible. Many custodial parents are simply unable to pay or have been exempt from paying due to poverty.

If schools were not able to recover outstanding fees from non-custodian parents, they may well end up operating at a loss.

In my particular case mentioned at the start, the attorney who drafted the divorce order had erred, as no clause had been included dealing with which parent would be liable post-divorce for the school fees. This should have been thoroughly dealt with in the consent paper.

Outstanding school fees is a huge point of litigation post-divorce I find in my practice. When couples become divorced they often can no longer afford to pay school fees. I think that it is fair to say that the non-custodian parent should be liable for school fees in the event of the custodian parent being unable to pay.

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